Latest Tricks: FISA, The Courts, The Petulant Unilateral Executive, And You

There are a lot of woulda, coulda, shouldas in play with the current FISA bill debate that is set to start any minute in the Senate. One of the biggest is why the substantial power of Rule 14 was not put into play by Democratic leadership — specifically by Harry Reid — to wholly undercut any capitulation to a Cheney-esque misinterpretation and subversion of the rule of law.

Yet, here we are. Sen. Reid said this morning on the floor of the Senate (rough transcript):

We’re going to come in, probably, at 11:00 on Monday. There will be a cloture vote an hour off that on FISA. People have said, well, with some of the blogs saying, why didn’t you Rule 14 to make it easier and allow people who did not like the bill to make their position known. Mr. President, I have stated here on the floor, this is the third time, the reason we’re going to cloture is because Senator Feingold and Dodd want a 60-vote margin on proceeding to the bill.

Glad you are reading "the blogs," sir. Why exactly did you not use Rule 14 to stand up for the rule of law and the Constitution? And, while we’re chatting, sir, the fact that Sen. Dodd objects to retroactive immunity for telecoms has nothing whatsoever to do with the fact that you are using strawman language to try and mask a procedural failure on your part. And having spent quite a bit of time monitoring the behind-the-scenes machinations on this bill, I’m calling bullshit on the "Feingold and Dodd insist on 60 votes" on the SJC bill — I’d like proof of that, if you please. I think what they have said is that they want a 60 vote margin to add immunity back into any bill — had you followed their advice and gone with a base bill with no retroactive immunity in it in the first place and/or a 60 vote margin to pass any bill with immunity contained therein. If you wouldn’t mind answering a few questions on this, I’d sure love some answers as long as you seem to be using us blogs as your latest excuse for failure to lead and all.

You can contact Sen. Reid’s office to ask about this as well. Lots of options for contact here and here.

KagroX details all of the pending veto threats from our petulant would-be King George, and it isn’t a pretty list. As Kagro says:

Every Congress has to deal with the realities of the check against the legislature represented by the veto power. But recalling the president’s, let’s say "unconventional," use of his powers in the August FISA debate, there is a very real and very troubling prospect looming. A president willing to veto nearly everything the Congress produces and even to threaten to hold them in extended session until they produce what he dictates threatens the legislative branch’s very reason for being.

Sooner or later, the Congress is going to have to confront this reality. They’re making a strategic decision to put any fights off, hoping to have it either on some particular issue of their choosing, with some other future president, or that it will just go away and never come back and they’ll never have to do anything about it at all — listed roughly in reverse order of their preference.

It’s a legitimate strategy. There’s always some chance this will all go away and never come back. And we’re going to find out.

It may very well be a legitimate strategy over the long haul if all you care about is the next election cycle — and you are depending solely on the stupidity of the majority of Americans. But it is an incorrect one for these times, for this President, and for this issue. Honestly, if Stolberg is trotting it out as a "strength," you just know there is some murky WH PR initiative out there waiting in the wings, because she doesn’t write anything without WH Press Office stamps of approval. (H/T to dakine for the link.)

Quite frankly, the Constitution and the rule of law have been battered enough — and all of us expect and deserve more leadership than we have been getting of late.

Which leads me to a recently declassified opinion from the FISA Court that provides the example from the Judiciary branch that we ought to be seeing from the Legislative branch as well. This is an unusual step for the FISA Court — this is only the third declassified opinion in the entire history of the court, which is notable enough. But it also takes the Bush Administration and their erstwhile Congressional and PR surrogates (I’m looking at you, Kit Bond and John Boehner) to task for their strategy of selectively leaking only the cherry-picked bits and pieces of classified information that they find politically useful while holding back the entire, honest picture from the American public. Allow me to quote from the memorandum opinion (FISA docket no.: MISC. 07-01, pp. 20-21 PDF):

…In arguing for FISC classification review of the documents, the ACLU ponts to public discussion by administration officials relating to the documents in question. The ACLU contends that the government cannot argue, on the one hand, that the documents in question are properly classified in their entirety, yet, on the other, release information purporting to describe what the FISC has done. The ACLU suggests that the government has engaged in "selective and politically motivated" disclosures. See ACLU Motion at 13.

Perhaps the government’s public statements weaken its contention that the documents at issue are properly classified in their entirety. Perhaps not. This Court will not decide or comment on the issue, however, because the Court concludes that the ACLU’s claim of inappropriate classification, and the government’s public statements, do not alter the Court’s determination that the "logic" test is not satisfied. In particular, the FISC could not engage in a classification review more searching than that of a district court without undue risk to the national security and the FISA process for the reasons stated above.

In plain language, the FISA court just called the Bush Administration on its hypocritical use of classified information for its own political purposes and not properly taking national security considerations into account while using this information as a political football. Good for them.

But this also brings into stark contrast the fact that they have punted this abysmal situation back into the Congress, where oversight and legislative action are the corrective remedies for executive branch overstep. Which is exactly what we have not been seeing, as delay and capitulation to veto threats have sadly ruled the day in the face of overarching political concerns versus standing up proudly for the Constitution.

We need leadership. From every Democratic Presidential candidate, from every Democratic member of the House and Senate. From every American who cares about his or her nation as a nation of laws and not at the whim of a unilateral executive power grab. We fought one revolution in this nation against a petulant King George. It’s high time we remembered the value of spine and spunk — and it is well past time that our elected "leaders" actually exerted some leadership.

(Thought some Dire Straits was in order this morning. It’s good to be back from vacation and back on the page…)

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.